I am writing to confirm that Informal Interpretation 0501003 still reflects current PNO thinking.

Specifically, we are analyzing whether the acquisition of interests of a REIT (REIT X) would be HSR reportable. REIT X is organized as a trust under Maryland law (like the REIT in Informal Interpretation 0501003). Specifically, the relevant law is the Maryland REIT Law, which is Title 8 of the Maryland Corporations and Associations Laws. The law defines a "real estate investment trust" as an "unincorporated business trust formed under [Title 8] in which property is acquired, held, managed, administered, controlled, invested, or disposed of for the benefit and profit of any person who may become a shareholder." It is distinguished from a common law "business trust."

REIT X has a board of trustees and the securities that would be acquired have rights to vote for trustees.

Would the acquisition of REIT X securities by X not be HSR reportable so long as X would not acquire interests in REIT X entitling it to at least 50% of the profits or assets of REIT X? Is this the case despite the fact that the definition of non-corporate interests states that "unincorporated entities do not include trusts that are irrevocable and/or in which the settlor does not retain a reversionary interest and any interest in such a trust is not a non-corporate interest as defined by this rule."

If REIT X does not qualify as an unincorporated entity, how should we treat it for HSR purposes?

About Informal Interpretations

Informal interpretations provide guidance from previous staff interpretations on the applicability of the HSR rules to specific fact situations. You should not rely on them as a substitute for reading the Act and the Rules themselves. These materials do not, and are not intended to, constitute legal advice.